(dissenting).
After viewing the majority opinion it looked as though it was a dissent from a dissent. Rather than create another dissent I will maintain my original position on this case, as follows:
Judge McBride was appointed by the Honorable Jerry Apodaca, Governor of the State of New Mexico, to the said office of District Judge, to fill the vacancy created by the retirement of the Honorable Paul Larrazolo, District Judge of the Second Judicial District, Division VI. The Attorney General asserts that Judge McBride now usurps that office. The Attorney General further alleges that Judge McBride’s appointment on January 3, 1975, was made in violation of N.M.Const., art. IV, Sec. 28, which reads:
“No member of the legislature shall, during the term for which he was elected, be appointed to any civil office in the state, nor shall he within one year thereafter be appointed to any civil office created, or the emoluments of which were increased during such term; nor shall any member of the legislature during the term for which he was elected nor within one year thereafter, be interested directly or indirectly in any contract with the state or any municipality thereof, which was authorized by any law passed during such term.”
This constitutional provision is involved because respondent was elected to the State Senate from Senatorial District 37, in 1970. During respondent’s tenure as a state senator, the emoluments of district judges were changed by the legislature. Laws of New Mexico, ch. 67 (1972).
In 1972, however, there was a reapportionment and the length of then Senator McBride’s term, plus his constituency, is subject to different interpretations, and will be discussed later herein, as the term of office and not the office itself is crucial to a determination of the issue at hand. In any event, respondent remained a member of the New Mexico State Senate until December 31, 1974, whether de facto or de gracia.
I agree that quo warranto is the proper proceeding in a cause such as that before us, i. e., to challenge the right of a person to hold the office of district judge. Whether or not the proceedings have been correctly followed will be a portion of the discussion herein.
In New Mexico, quo warranto actions became statutory proceedings (Laws 1919, ch. 28, § 1) and remain the same today (§§ 22-15-1 to 22-15-16, N.M.S.A.1953). As stated above, the attorney general is the proper party to initiate an action such as this under the provisions of § 22-15-4, supra, which sets out the following:
“An action may be brought by the attorney general or district attorney in the name of the state, upon his information or upon the complaint of any private person, against the parties offending in the following cases
“(a) When any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office or offices in a corporation created by authority of this state; * *
To properly initiate proceedings in quo warranto, we must look to other provisions in the statutes, specifically § 22-15-1, N. M.S.A.1953. This section describes procedurally how an action in the nature of quo warranto is begun, as follows:
“The remedies heretofore obtainable by writ of quo warranto and by proceedings by information in the nature of quo warranto shall be commenced by the filing of a complaint as in other civil actions, and it shall not be necessary to sue out such writs in form, but this section shall not prevent nor be construed to prohibit the use by the Supreme Court and the district courts of the state of writs and proceedings in the forms hitherto used in such cases by such courts.”
Being satisfied that the requirements of § 22-15-1, supra, have been met, we must now look to the substantive requirements of the complaint as set out in § 22-15-6, supra, which provides:
“Whenever such action shall be brought against a person for usurping an office, the attorney general, district attorney or person complaining, in addition to the statement of the cause of action, shall also set forth in the complaint the name of the person rightfully entitled to the office with a statement of his right thereto, and in such cases, upon proof by affidavit that the defendant has received or is about to receive the fees and emoluments of the office by virtue of his usurpation thereof, the judge of the district court wherein such proceeding is pending, or a justice of the Supreme Court, if the proceeding be therein pending, may by order require the defendant to furnish a good and sufficient bond, within a designated time not exceeding fifteen [15] days, executed and acknowledged as required by law in the case of supersedeas bonds on appeal, to be approved by said judge, conditioned that in case the person alleged to be entitled to the office should prevail, the defendant will repay to him all fees and emoluments of the office received by him and by means of his usurpation thereof, and in addition to said bond, or in case of a failure to give said bond, the said judge or justice shall upon good cause shown, issue a writ of injunction directed to the proper disbursing officer enjoining and restraining him from issuing to the defendant or his assigns any warrant, check, certificate or certificates of indebtedness representing fees or emoluments of said office, until the final adjudication of said cause.”
It is necessary that the statutory requirements be carefully examined in this case as the remedy sought is strictly statutory. This is true in most states, and came about because the original or common-law writ of quo warranto, which evolved from England, involved a lengthy and complicated process and was also criminal in nature, causing it to fall into disuse. See W.L.Q. 1972 at 751.
In examining § 22-15-6, supra, we note that petitioner has failed to allege certain required facts as set out in the statute:
“Whenever such action shall be brought against a person for usurping an office, the attorney general, district attorney or person complaining, in addition to the statement of the cause of action, shall also set forth in the complaint the name of the person rightfully entitled to the office with a statement of his right thereto, * * (Emphasis supplied.)
Failure to include said allegations is fatal.
We dealt with the question of the requirements of the quo warranto statute in State ex rel. Hannett v. District Court of First Judicial Dist., 30 N.M. 300, 233 P. 1002 (1925), and considered the statutory requirements to be jurisdictional, stating at page 306, 233 P. at page 1004:
“ * * * ‘whenever such action shall be brought against a person for usurping an office, the Attorney General, district attorney or person complaining, in addition to the statement of the cause of action,’ — here follows provisions requiring certain facts to be alleged, and providing for a bond by the defendant for repayment of fees and emoluments in case he loses the office, and providing for an injunction against the disbursing officers from paying the defendant in case of his failure to give such bond. * * * ” (Emphasis added.)
It is apparent from the foregoing review of the statute that the state is an indispensable party plaintiff in a proceeding of this kind. It is so provided by the letter of the statute. While the state, ordinarily, has no substantial interest in such a controversy, the real party in interest being the contestant for the office, who might well be allowed to bring the action in his own name, it is not for us to question the wisdom of the statute. That rests with the legislature.
The determination of when an action in quo warranto should lie is a legislative function, and the doctrine of separation of powers precludes us from engaging in their field.
Other states have dealt with this problem in different ways. Some have written their statutes in very general terms so as to avoid the type of problem before us. See Arkansas, Connecticut, Delaware, Florida, and Georgia. Meanwhile, other states have simply substituted the word “may” for “shall” in the portion of the statute that is of concern to us here. See Alabama, Alaska, and California.
One state which has dealt with the problem of interpretation of quo warranto statutes is Alabama, a state which has permissive rather than mandatory language in its statute. An early case construing the Alabama Statute is Louisville & N. R. Co. v. State, 154 Ala. 156, 45 So. 296 (1907), which held at 299:
“ * * * a quo warranto proceeding, it seems to be strongly intimated if not directly held, that the rule in respect to clearness or precision of statement in pleading should, on account of the requirements of the statute (section 3428), be more strictly applied to information than to pleadings in ordinary cases. * * * ”
A more recent Alabama case following this reasoning is found in State v. Key, 276 Ala. 524, 525, 165 So.2d 76, 77 (1964):
“In this state quo warranto is a statutory proceeding and to be maintained it must meet the requirements of the statute as to parties and procedure. * * * ”
The two foregoing Alabama cases seem to echo precisely the holding in the Han-nett case, supra, which is the only New Mexico case on this point. The extreme nature of the remedy in a quo warranto action requires strict adherence to the statutory requirements.
In determining whether or not a court has jurisdiction of proceedings in quo warranto, reference must be made to the organic law and statutes of the state. Redmond v. State, 152 Miss. 54, 118 So. 360 (1928); Lindsey v. Attorney General, 33 Miss. 508 (1857). The foregoing being true, the attorney general cannot, by consent, confer jurisdiction on a court which it does not possess under the constitution or by statute. State R. R. Commission v. People, 44 Colo. 345, 98 P. 7 (1908). See also, State ex rel. Halfield v. Ireland et al., 130 Ind. 77, 29 N.E. 396 (1891).
State ex rel. Hague v. Slack, 200 Ind. 241, 162 N.E. 670 (1928), involved an action brought by the appellant against appel-lee in the nature of quo warranto for usurpation of the office of Mayor of Indianapolis. This proceeding was based on an Indiana statute which provided that whenever an information shall be filed by the prosecuting attorney against a person for usurping an office, it shall also set forth therein the name of the person rightfully entitled to the office, with an averment of his right thereto. The case was affirmed.
In Wood v. Arnall, 189 Ga. 362, 365, 6 S.E.2d 722, 724 (1939), the Georgia court said in connection with a quo warranto challenge to the holder of the office of attorney general:
“A quo warranto inquires into the right of any person to any public office the duties of which he is in fact discharging, but must be granted at the suit of some person either claiming the office or interested therein. * * * ”
Turning from the procedural issues of the case to the substantive, it might be helpful first to examine the evolution of the constitutional section in question. U. S.Const., art. I, § 6 provides, in part:
“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”
This particular section, quite similar to our own, was adopted at the Constitutional Convention of 1787, and met with considerable opposition. See, Objections to Appointments of Judges, 6 G.W.L.Q. 46, 81-82 (1937). It appears that proponents of the measure were extremely concerned with the possibility of corruption, no matter how remote. The section of the Constitution in question was introduced to include the additional one-year prohibition like New Mexico, but that portion was defeated. See, G.W.L.Q., supra, at 82 fn. 135, which quotes from 1 Farrard, The Records of the Federal Convention of 1787 (1911). It is obvious again that this one-year provision is archaic and over-broad.
Those in opposition to this provision of the Constitution felt that it discouraged merit and would open the door to bad appointments by the executive. They also believed that the most able men were to be found in the legislature, and the country should not be deprived of their services. See 6 G.W.L.Q., supra at 82, fn. 135. It is also interesting to note that the vote on this provision was very close, passing by a vote of 5 in the affirmative, 4 in the negative, and one state divided. See, 2 Far-rand, supra, at 492, cited in 6 G.W.L.Q., supra, at 82 fn. 136.
Today, nearly two hundred years after the adoption of the provision in question, we still have problems with it. The section must be looked at, keeping in mind its purpose and, further, the fundamental rights of citizens in our democratic system. These thoughts were considered by the Utah Supreme Court in Shields v. Toronto, 16 Utah 2d 61, 395 P.2d 829, 830 (1964):
“If this single provision stated all of the law and covered all of the rights of all of the persons affected, the answer to the problem we confront would be simple ' enough. But such is not the case. It is obviously not possible to state all of the law necessary to assure a well-ordered society in any such single prohibitory provision. For this reason it cannot properly be regarded as something isolated and absolute but must be considered in the light of its background and the purpose it was designated to serve; and in relation to other fundamental rights of citizens set forth in the entire Constitution which are essential to the proper functioning of our democratic form of government. One of the principal merit's of our system of law and justice is that it does not function by casting reason aside and clinging slavishly to a literal application of one single provision of law to the exclusion of all others. Its policy is rather to follow the path of reason in order to avoid arbitrary and unjust results and to give recognition in the highest possible degree to all of the rights assured by all of the Constitutional provisions.”
It seems clear that the purpose of the provision in the New Mexico Constitution, art. 4, § 28, is the same as that espoused in regard to the federal version, namely, to eliminate corruption or possibility thereof. An examination of the facts in the case before us leads us to the conclusion that the provision in question must be stretched beyond the intention of even its most vigorous supporters. For example, when respondent was a member of the 1972 Senate which passed the salary increase in question, he could not have known whether there would even be a judicial vacancy; nor would he have known that the Honorable Jerry Apodaca would be elected Governor of New Mexico, and, lastly, whether any Governor would appoint the respondent to the vacant judgeship. To contend that there was personal gain involved in respondent’s being a member of the Senate when the judicial salary increase was passed is absurd. In Shields v. Toronto, supra, the court stated, with reference to the intent of the provision, at 395 P.2d 830:
“This purpose is altogether salutary. Let it be said with the greatest of emphasis that the provision referred to should neither be ignored nor evaded, but whenever there is even a remote possibility that the evil it was designed to prevent might exist, it should be applied in such manner as to accomplish its objective. However, when adequate safeguards in that respect are observed, there appears to be no good reason to carry this provision beyond that purpose and make an unreasoning application of it where no such evil, nor any possibility of it exists. This would work injustice by depriving citizens of their basic rights and would also tend to disrupt the orderly processes of democratic government.”
We should be mindful that executive appointments should carry the same presumptions of constitutionality as legislative acts. In a case similar to the present one the Washington Supreme Court stated in State ex rel. O’Connell v. Dubuque, 68 Wash.2d 553, 413 P.2d 972, 980 (1966):
“A strong public policy exists in favor of eligibility for public office, and the constitution, where the language and context allows, should be construed so as to preserve this eligibility. * * * ”
In concluding this discussion, I find the language of the court in Shields v. Toronto, supra, very persuasive, stating at pages 832-833:
“So important that it cannot be ignored, but must be considered in the composite picture, is the effect the plaintiffs contended for application of this Constitutional provision would have upon the fundamental rights of citizens and upon the overall functioning of our democratic system of government. The foundation and structure which give it life depend upon participation of the citizenry in all aspects of its operation. On patriotic occasions we hear a great deal of oratory declaiming how precious is the right and how essential is the duty to vote for the candidate of one’s choice. The emphasis is placed on the first clause — the right to vote; and the second clause — for the candidate of one’s choice, is minimized or forgotten. Lost sight of is the fact that the two rights are correlative, and that to make the first meaningful, the second must also be assured. Furthermore, the natural corollary of the right to vote is the right to seek and to serve in public office. Reflection on the matter will reveal that these rights are of vital importance both to individual citizens and to the public. That the framers of our Constitution so regarded them and that these rights are correlated to each other and part of the integral rights and privileges of citizenship is plainly apparent from its numerous references to ‘the right to vote and hold office’ in the same context.
“For the purpose of seeing these rights in clearer perspective, suppose this were a case initiated by some voter insisting upon his right to ‘vote for the candidate of his choice,’ or by these candidates, insisting that their rights as citizens to run for office are absolute regardless of any or all other provisions of law. They could so maintain with as much logic as the plaintiff asserts his position here. Yet, there is no question but that other provisions of law can and do limit the rights to vote and to hold office to those properly qualified. The fair and proper adjudication of those rights would have to be that the citizen could insist upon them unless for some good and sufficient reason he is actually not qualified to vote, or for the office he seeks, or he is guilty of some wrong which would justify deprivation of such rights. If he were deprived of the privilege without any such ground existing, he would be unjustly and arbitrarily deprived of a right and privilege of citizenship.”
In spite of the stipulation between counsel for the parties herein, which is of record, there are some discrepancies to be noted. The respondent was a candidate in the primary election held on June 6, 1970, and ran from an area designated as Senatorial District No. 37, depicted on Exhibit “A” appended to this opinion. The area from which respondent ran in the primary is shown outlined in black lines, including the area marked in red. Later, in September 1970, this area was changed with the addition of the area marked in green. This obviously shows an increase in the area of representation of more than four times the original area. In addition, the total registration in Senatorial District 37 was 14,034 in the 1970 general election, and the total registration in Senatorial District 17 in the 1972 general election was 10,817. Further, seven precincts from the old District 37 were eliminated from the new District 17 at general election time in 1972. It seems obvious that the respondent was representing a significantly different group of people in 1973 and 1974 than prior to that time.
In the 1970 primary there were approximately 1,319 persons who were not allowed to vote in respondent’s senate race because they were added to the district after the primary election. None of the facts shown in the above two paragraphs were referred to or shown in the stipulation mentioned above.
It is a fundamental principle of American democracy that the people shall elect their representatives in government and that said representatives shall be responsible to these persons who voted in the election for or against them. In addition, said representatives would be responsible in the electoral process to all those persons who resided in the area who could have voted in said election, were eligible and exercised their privilege. In the fact situation before us this purpose has simply been disregarded as some 4,000 persons were transferred to Senate District 20 and represented by someone other than the respondent whom they elected in 1970. See area blocked in red on Exhibit “B” appended hereto which depicts Senatorial District 17 as it was in the 1972 general election.
In the 1972 Senate Reapportionment Act, Laws 1972, ch. 79, sec. 10, we find the following :
“(1) the 1972 Senate Reapportionment Act provides in the provisional plan for a senatorial district having the same geographical boundaries as the district from which he was elected in 1970; or
“(2) the 1972 Senate Reapportionment Act provides in the provisional reapportionment plan for a senatorial district having geographical boundaries lying entirely within the geographical boundaries of the district from which he was elected in 1970. * * *”
Obviously, the above statutory provisions cannot be interpreted to mean that a senator shall remain in office when a substantial number of people who were under the respondent as constituents have been removed from that status. At the very least, the respondent should have been .a candidate for his Senate seat in 1972. His service can obviously be called de facto in 1973 and 1974, negating any application of N. M.Const., art. IV, § 28.
Referring to art. IV, § 28, containing the phrase, “the emoluments of which were increased during such term,” it is to be noted that the last change in annual compensation was made by the legislature in 1972. But from 1967 to 1972, the consumer price index rose 25.3 per cent. In addition, a district judge in New Mexico in 1967, received an annual salary of $17,500. Assuming the purchasing power of that money to be $17,500 in 1967, after the legislature granted an increase to $27,000 to the district judges, the purchasing power of the $27,000 figure was $17,430, or $70.00 less than it was five years before. (Data obtained from the American Judicature Society and the U.S. Department of Labor.)
I fail to see where the emoluments to the district judges were increased in any way, shape or form. Had the legislature failed to act as it did in 1972 it would have created a gross reduction in salaries. Further, that the raises, emoluments, or “catch-up” involved when considered in lieu of the increases in the cost of living could have induced very few if any qualified members of the bar to seek the office of district judge, but rather those persons with a sincere commitment to our judicial system are attracted to the judiciary based on strong personal beliefs rather than pecuniary gain.
Because of the rather small pecuniary benefits attached to the office of district judge very few persons seek the position whose rewards are based on self-satisfaction through involvement with a fundamental aspect of our democratic principals. Proof of this can be seen in the number of persons seeking the office of district judge in the 1972 primary elections, the last time all district judges ran for election or reelection. In the democratic primary, in thirteen judicial districts and twenty-six judgeships, only seven of the twenty-six judgeships were contested. On the republican side, only three of the twenty-six judgeships were contested with sixteen of them having no candidate at all.
By way of comparison, twenty-five persons sought the democratic nomination for United States Senator and eight the republican nomination in the same 1972 primary election. In the United States Representative primary, six democrats and four republicans sought the two positions.
These primary elections were held after the judicial salary increase in question had been passed and signed into law. It would seem elementary that if no more than those indicated above showed an interest in seeking the office of district judge, a man of the unquestioned qualifications of respondent who had a very good law practice and served as a powerful leader in the state Senate would not have accepted the office he now holds because of the minute pecuniary gains attached to the office during his tenure as a state Senator.
The Chief Justice of the United States Supreme Court, Warren E. Burger, recently aired his views on the inadequate salaries of judges. Speaking mainly of federal judges, whose salaries are much greater than state judges, the Chief Justice pointed out in his sixth annual State of the Judiciary Address to the American Bar Association that the lack of giving judges raises since 1969 might violate “the spirit of the constitutional prohibition against reduction of salaries of federal judges during their terms of office.”
The court, in Shields v. Toronto, supra, at 831, in addressing itself to the emoluments question which involved similar circumstances to those before us now, stated:
“The important fact here is that the salary increases involved could not by any stretch of the imagination be regarded as partaking of the impropriety just referred to. There are two significant points which emphasize the correctness of this conclusion. In the first place, the raises given were not directed toward the creation of, nor to the increase of emoluments of any particular office, but were part of a general salary overhaul covering executive officers and judges of the state. * * * These relatively small increases, of that character, should properly be regarded as just what they were, a moderate cost of living adjustment on an across-the-board basis in keeping with the steadily rising costs of living. Accordingly, it can be said with assurance that this is not a situation which would lend itself to any ulterior scheme by a legislator to set up a high paying sinecure to take advantage of which Section 7 of Article VI was designed to prevent. Nor is there any reasonable likelihood that such raises would have induced anyone to run for the offices in question who would not otherwise have done so. The fact that some members of the legislature aspired to the named offices is merely coincidental. This is so clear that we believe no fair-minded person would contend to the contrary. Indeed, to the credit of the plaintiff and his counsel, no contention has been made that there was any actual impropriety or ulterior purpose whatsoever in the conduct of these candidates.”
In my opinion this reasoning is convincing and applicable here and the writ heretofore issued should be dissolved. The majority ruling otherwise,
I respectfully dissent.
See Appendix on next page
APPENDIX
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